R v Smurthwaite ; R v Gill
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 11 August 1993 |
| Judgment citation (vLex) | [1993] EWCA Crim J0811-1 |
| Docket Number | >No. 92/6554/Z5 |
| Court | Court of Appeal (Criminal Division) |
[1993] EWCA Crim J0811-1
Before: The Lord Chief Justice of England (Lord Taylor of Gosforth) Mr Justice Alliott and Mr Justice Buckley
>No. 92/6554/Z5
93/1454/W4
IN THE COURT OF APPEAL CRIMINAL DIVISION
MR PAUL WORSLEY QC and MR KENNETH GILLANCE appeared on behalf of THE APPELLANTS
MR MALCOLM SWIFT QC and MR TIMOTHY ROBERTS appeared on behalf of THE CROWN in the case of SMURTHWAITE
MR DAVID GRIPTON appeared on behalf of THE CROWN in the case of GILL
( As approved)
Wednesday 11 August 1993
THE LORD CHIEF JUSTICEOn 27 July 1993, we dismissed these two appeals against conviction. We now give our reasons and deal also with appeals against sentence.
The two cases were heard together since they had a number of features in common. In each, the appellant was convicted of soliciting to murder; Smurthwaite to murder his wife, Gill to murder her husband. In each case, the person solicited was an undercover police officer posing as a contract killer. Arising from that situation, there was argument on each appeal as to the admission of the undercover officer's evidence of what was said by each appellant.
It is convenient first to consider the legal arguments advanced by Mr Worsley QC on behalf of both appellants and then to apply the law to the facts of each case separately.
Mr Worsley's principal aim was to establish the breadth of the judge's powers, under section 78 of the Police and Criminal Evidence Act 1984, to exclude prosecution evidence where that evidence has one or more of three features: (a) it includes an element of entrapment, (b) it comes from an agent provocateur, or (c) it is obtained by a trick.
Mr Worsley's starting point was the decision of the House of Lords in Sang (1980) AC 402. Briefly, his thesis was that certain rulings in that case have now in effect been reversed by the provisions in section 78. The principles enunciated in Sang are to be found in the final paragraph of Lord Diplock's speech with which all of their Lordships agreed as follows:
"(1)A trial judge in a criminal trial has always a discretion to refuse to admit evidence if in his opinion its prejudicial effect outweighs its probative value.
(2)Save with regard to admissions and confessions and generally with regard to evidence obtained from the accused after commission of the offence, he has no discretion to refuse to admit relevant admissible evidence on the grounds that it was obtained by improper or unfair means. The Court is not concerned with how it was obtained. It is no ground for the exercise of discretion to exclude that the evidence was obtained as a result of the activities of an agent provocateur."
The decision in Sang thus made it clear that there is no substantive defence of entrapment or agent provocateur in English criminal law. Their Lordships held that a judge had no discretion to exclude otherwise admissible evidence " on the ground that it was obtained by improper or unfair means".
However, they also made it clear that a judge does have an overall discretion to exclude evidence in order to secure a fair trial. Thus, Lord Diplock at page 436 G, said:
"The function of the judge at a criminal trial as respects the admission of evidence is to ensure that the accused has a fair trial according to law. It is no part of a judge's function to exercise disciplinary powers over the police or prosecution as respects the way in which evidence to be used at the trial is obtained by them. If it was obtained illegally, there would be a remedy in civil law; if it was obtained legally but in breach of the rules of conduct for the police, this is a matter for the appropriate disciplinary authority to deal with. What the judge at the trial is concerned with is not how the evidence sought to be adduced by the prosecution has been obtained, but with how it is used by the prosecution at the trial."
Similarly, Viscount Dilhorne, at page 441 G, said:
"Evidence may be obtained unfairly, though not illegally, but it is not the manner in which it has been obtained but its use at the trial if accompanied by prejudicial effects outweighing its probative value and so rendering the trial unfair to the accused which will justify the exercise of judicial discretion to exclude it."
Similar dicta are to be found in the speech of Lord Salmon at page 445 E —F, in the speech of Lord Fraser at page 450 B —C, and in the speech of Lord Scarman at page 452 F, 454 E —H and 456 D.
Section 78 of the 1984 Act, provides as follows:
"(1)In any proceedings the Court may refuse to allow evidence on which the prosecution proposes to rely, to be given if it appears to the Court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the Court ought not to admit it.
(2)Nothing in this section shall prejudice any rule of law requiring a Court to exclude evidence."
Section 82(3) of the Act provides:
"Nothing in this Part of this Act shall prejudice any power of a Court to exclude evidence (whether by preventing questions being put or otherwise) at its discretion."
It was submitted that since section 82(3) preserves the Judge's common law discretion to exclude evidence so as to ensure a fair trial, section 78 must introduce a wider power. Mr Worsley emphasised the phrase "including the circumstances in which the evidence was obtained." He sought to apply it specifically to evidence obtained by entrapment, by an agent provocateur or by a trick and argued that the section altered the law as laid down in Sang so as to enable evidence obtained in those ways to be excluded. Whilst at some stages of his argument he accepted that there is still no substantive defence of entrapment or agent provocateur, at others he contended that, in effect, section 78 afforded such a defence.
In Harwood (1989) Crim LR 285, the Court stated, albeit obiter, that section 78 has not abrogated the rule that neither entrapment nor agent provocateur afford a defence to a criminal charge. "The rule that entrapment was no defence could not be evaded by the procedural device of preventing the prosecution adducing evidence of the commission of the offence." In Gill and Ranuana (1989) Crim LR 358, some reservations were expressed as to the correctness of those dicta in Harwood.
In our judgment, section 78 has not altered the substantive rule of law that entrapment or the use of an agent provocateur does not per se afford a defence in law to a criminal charge. A purely evidential provision in a statute, which does not even mention entrapment or agent provocateur, cannot, in our view, have altered a substantive rule of law enunciated so recently by the House of Lords. Had Parliament intended to alter the substantive law, it would have done so in clear terms.
However, that is not to say that entrapment, agent provocateur, or the use of a trick are irrelevant to the application of section 78. The right approach to the 1984 Act, a codifying Act, is that stated in Fulling 85 Cr App R 136, following the principles laid down in Bank of England v Vagliano (1891) AC 107 at page 144. That is simply to examine the language of the relevant provision in its natural meaning and not to strain for an interpretation which either reasserts or alters the pre-existing law. Viewed in that way, the phrase emphasised by Mr Worsley clearly permits the Court to have regard to "the circumstances in which the evidence was obtained" and to exclude it, but only if it "would have such an adverse effect on the fairness of the proceedings that the Court ought not to admit it". Thus, the fact that the evidence has been obtained by entrapment, or by agent provocateur, or by a trick does not of itself require the judge to exclude it. If, however, he considers that in all the circumstances the obtaining of the evidence in that way would have the adverse effect described in the statute, then he will exclude it. (See also R v Governor of Pentonville Prison ex parte Chinoy [1992] 1 All ER 317 at page 331–332 to the same effect) "Fairness of the proceedings" involves a consideration not only of fairness to the accused but also, as has been said before, of fairness to the public (see e.g. Sang at page 456 E, per Lord Scarman).
In exercising his discretion whether to admit the evidence of an undercover officer, some, but not an exhaustive list, of the factors that the judge may take into account are as follows: Was the officer acting as an agent provocateur in the sense that he was enticing the defendant to commit an offence he would not otherwise have committed? What was the nature of any entrapment? Does the evidence consist of admissions to a completed offence, or does it consist of the actual commission of an offence? How active or passive was the officer's role in obtaining the evidence? Is there an unassailable record of what occurred, or is it strongly corroborated? In Christou and Wright 95 Cr App R 264, this Court held that discussions between suspects and undercover officers, not overtly acting as police officers, were not within the ambit of the Codes under the 1984 Act. However, officers should not use their undercover pose to question suspects so as to circumvent the Code. In Bryce 95 Cr App R 320, the Court held that the undercover officer had done just that. Accordingly, a further consideration for the judge in deciding whether to admit an undercover officer's evidence, is whether he has abused his role to ask questions which ought properly to have been asked as a police...
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